Overview

[1] On the afternoon of October 22, 2019, the accused, Jonathan DaSilva Smith, stabbed the complainant, Benny Settimo, in the neck and back.

[2] Mr. DaSilva Smith is charged with attempted murder, robbery, aggravated assault, and failure to comply. At trial, Mr. DaSilva Smith pleaded guilty to the charge of failure to comply with the release order dated August 14, 2019.

Facts

[3] The following facts are largely undisputed, unless indicated otherwise.

[4] On the afternoon of October 22, 2019, Mr. DaSilva Smith went to the home of the complainant, Benny Settimo. Mr. DaSilva Smith and Mr. Settimo had met while both were incarcerated at the Central East Correctional Centre (CECC) in Lindsay, Ontario. At one point, they were cell mates for approximately two weeks. Mr. Settimo was released before Mr. DaSilva Smith. After Mr. Settimo’s release, he checked up on Mr. DaSilva Smith, who remained incarcerated. They were also in touch after Mr. DaSilva Smith was released in August 2019.

[5] It is undisputed that Mr. DaSilva Smith had also gone to Mr. Settimo’s house a week or two before October 22, 2019. They “checked-up” on each other, talked, and smoked on the porch.

[6] On October 22, 2019, Mr. DaSilva Smith sent Mr. Settimo a message through Snapchat, asking what he was doing. Mr. Settimo told Mr. DaSilva Smith that he was having his hair braided by his girlfriend, Kylie. Mr. DaSilva Smith asked if he could come over and have his hair braided, and Mr. Settimo agreed. He told Mr. DaSilva Smith that it would cost $20.

[7] Mr. Settimo was living with his mother, Nancy Porter, in Oshawa at the time. Ms. Porter was also at the house that day and met Mr. DaSilva Smith. Ms. Porter went to the bank to withdraw money for Mr. Settimo and to pick up his son from school. She later returned to the house.

[8] Both men were in the kitchen when Kylie braided their hair. They also went out to smoke. They were at the house for a couple of hours in total. Mr. Settimo told Mr. DaSilva Smith that he wanted to pick up a necklace that he was having made for him and asked if he could arrange a ride.

[9] Mr. DaSilva Smith called a friend of his, whom he identified as Jordan. Jordan and another man named Shane, whom Mr. DaSilva Smith did not know, drove to Mr. Settimo’s street. Mr. Settimo did not want to give his home address out until he had met them. He and Mr. DaSilva Smith first met the two men down the street from his home. The two men then drove in the vehicle to Mr. Settimo’s house, where Mr. Settimo, Mr. DaSilva Smith, and Kylie all got into the back seat. Mr. Settimo paid $40 for the ride to Scarborough and back home to Oshawa.

[10] After the group arrived at the jewellery store in Scarborough, Mr. Settimo found that that the store was closed. He returned to the car, where the other four were waiting. They drove around and eventually, they stopped at a Harveys. Mr. Settimo purchased French fries with gravy.

[11] It is at this stage that Mr. DaSilva Smith’s and Mr. Settimo’s accounts begin to differ. It is undisputed, however, that Mr. Settimo, Kylie, and Mr. DaSilva Smith ended up hanging out in the parking lot at 5310 Finch Avenue East, while Jordan and Shane went somewhere else. According to Mr. DaSilva Smith, Jordan and Shane went to play pool at the Lyme Lounge pool hall, which was in a business centre a short distance away at 5330-5350 Finch Avenue East.

[12] There was a school bus parked in the parking lot at 5310 Finch Avenue East. Mr. Settimo opened the back emergency exit and he and Mr. DaSilva Smith went into the school bus. Kylie took photographs of them. At some point, Mr. Settimo pulled out a firearm to pose with. Both men posed with the firearm, but only Mr. Settimo held it.

[13] After taking the photographs, Mr. DaSilva Smith and Mr. Settimo exited the school bus. At that stage, according to Mr. DaSilva Smith, Mr. Settimo told him to tell his friends that he wanted to leave. Mr. DaSilva Smith went into the pool hall to speak with Jordan. Mr. DaSilva Smith testified that Jordan would drive Mr. Settimo back if he purchased an ounce of marijuana for $180, as had been previously agreed, or he would refund $20 for the return trip to Oshawa.

[14] Mr. DaSilva Smith and Jordan walked to the parking lot where Mr. Settimo was. The individual identified as Shane went back to the car.

[15] What happened next is highly contested. In brief, a struggle ensued in the parking lot. Mr. DaSilva Smith, who was carrying a knife, stabbed Mr. Settimo in the neck and back. Mr. Settimo took out his firearm and fired four shots. Mr. DaSilva Smith and Mr. Settimo’s accounts differ as to the sequence in which those events took place.

The Parties Positions

[16] The Crown’s theory is that when Mr. DaSilva Smith and Jordan returned to the parking lot at 5310 Finch Avenue East, they intended to rob Mr. Settimo of his firearm. The Crown’s position is that Mr. Settimo pulled out his firearm only after Jordan tried to grab his bag from the front while Mr. DaSilva Smith held a knife to Mr. Settimo’s neck from behind and stabbed him.

[17] The defence’s position is that Mr. DaSilva Smith stabbed Mr. Settimo in self-defence. Mr. DaSilva Smith testified that he was approaching Mr. Settimo to give him the marijuana when Mr. Settimo pulled out his firearm and began to fire. Mr. DaSilva Smith testified that he took out his knife and struggled to disarm Mr. Settimo and get away.

[18] The defence submits that the Crown’s theory is implausible because Mr. DaSilva Smith would not have attempted to rob Mr. Settimo of his firearm for the following reasons: (i) they were friends; (ii) Mr. DaSilva Smith only had a knife and Mr. Settimo had a firearm; (iii) there was a potential witness, Kylie; and (iv) Mr. DaSilva Smith had given his first name to Mr. Settimo’s mother.

Issues

[19] The issues in the case are as follows:

(a) Has the Crown demonstrated beyond a reasonable doubt that Mr. DaSilva Smith intended to kill Mr. Settimo?

(b) Has the Crown demonstrated beyond a reasonable doubt that Mr. DaSilva Smith committed aggravated assault against Mr. Settimo?

(d) Has the Crown demonstrated beyond a reasonable doubt that Mr. DaSilva Smith did not act in self-defence?

Analysis

The Applicable Principles

[20] It is important to note at the outset that Mr. DaSilva Smith is presumed innocent. The Crown bears the burden of proving the elements of the offences charged beyond a reasonable doubt. The reasonable doubt standard is a high standard. It is not sufficient to prove that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high.

Attempted Murder

[21] In order to find Mr. DaSilva Smith guilty of attempted murder, I must find that the Crown has proven beyond a reasonable doubt that he intended to kill Mr. Settimo. The mens rea for attempted murder is a specific intention to kill; recklessness or carelessness with respect to the consequences of one’s actions is not sufficient for a finding of guilt on a charge of attempted murder: R. v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225.

[22] In R. v. Martin, [2007] O.J. No. 5837 (Sup. Ct. J.), at paras. 7-8, aff’d 2010 ONCA 256, 88 W.C.B. (2d) 72, Gordon J. stated as follows:

To determine [the defendant’s] state of mind, … I must consider what in fact he did or did not do, how he did or did not do it, what he did or did not say. I must look at his words and conduct before, at the time and after the incident in question. All these things and the circumstances in which they happened shed light on his state of mind.

It is often said, as a matter of common sense, that if a sane and sober person does something that has predictable consequences that person usually intends or means to cause those consequences. In determining whether in all of the circumstances it is appropriate to draw this inference requires me to take into account all of the evidence….

Aggravated Assault

[23] In order to find Mr. DaSilva Smith guilty of aggravated assault under s. 268(2) of the Criminal Code, I must be satisfied beyond a reasonable doubt that the following occurred:

(a) Mr. DaSilva Smith intentionally applied force to Mr. Settimo;

(b) Mr. Settimo did not consent to the force Mr. DaSilva Smith intentionally applied;

(d) The force wounded, maimed, disfigured or endangered Mr. Settimo’s life.

Robbery

[24] In order to demonstrate that Mr. DaSilva Smith committed the offence of robbery contrary to s. 343(c) of the Criminal Code, the Crown must demonstrate the following facts beyond a reasonable doubt:

(a) Mr. DaSilva Smith intentionally applied force to Mr. Settimo;

(b) The force was applied without Mr. Settimo’s consent; and

Self-Defence

[25] In this case, Mr. DaSilva Smith does not dispute that he stabbed Mr. Settimo but claims that he did so in self-defence.

[26] Section 34 of the Criminal Code sets out the pre-conditions for a defence of self-defence:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

[27] Self-defence is an affirmative defence. There must be an “air of reality” to the defence before the Court is obliged to consider it and before the Crown is obliged to prove that an accused was not acting in self-defence: R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595. The threshold for finding an air of reality such that the court must consider a defence is low. The trial judge must be satisfied that there is some evidence upon which a court or a reasonable jury could find that self-defence applies. However, at this stage, the Court is not to weigh the evidence to determine the merits of the defence: R. v. Budhoo, 2015 ONCA 912, 343 O.A.C. 269, at paras. 42-49.

[28] If there is an air of reality to the defence of self-defence, the reasonable doubt standard applies. The Crown then bears the burden of establishing beyond a reasonable doubt that the defence of self-defence is not available in the circumstances of the case.

[29] In this case, I do not accept the Crown’s position that there is no air of reality to Mr. DaSilva Smith’s defence of self-defence. It is undisputed that Mr. Settimo had a firearm and that, during the course of their struggle, Mr. Settimo fired the gun. The order in which the events occurred is a highly contested issue that turns on the testimony of Mr. Settimo and Mr. DaSilva Smith. As will be detailed further in these reasons, both witnesses’ testimony raises issues of credibility and reliability.

[30] Because there is an air of reality to the defence of self-defence, the Crown must prove beyond a reasonable doubt that Mr. DaSilva Smith was not acting in self-defence. In order to do so, the Crown must prove beyond a reasonable doubt that at least one of the pre-conditions for self-defence articulated in s. 34(1) does not apply:

Assessing the Evidence

[31] Before proceeding with an examination of the evidence, it is useful to set out the principles that are applied by the court in weighing the evidence.

[32] In assessing the evidence, this court must follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. The W.(D.) analysis, as applicable to this case, would be articulated as follows:

(i) If the court believes Mr. DaSilva Smith’s evidence, he must be acquitted;

(ii) If the court does not believe Mr. DaSilva Smith’s evidence, but it leaves the court with a reasonable doubt, he must be acquitted; and

(iii) Even if Mr. DaSilva Smith’s evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown proves the charges beyond a reasonable doubt.

[33] In applying the W.(D.) analysis, Mr. DaSilva Smith’s evidence is not to be considered in isolation, but in the context of the evidence as a whole.

[34] In weighing the evidence, I must assess the credibility and reliability of the witnesses’ evidence. This involves a consideration of the internal consistency of each witness’s testimony and its consistency in the context of the evidence as a whole.

Evidence

Jonathan DaSilva Smith

[35] Mr. DaSilva Smith testified that he went to Mr. Settimo’s house a couple of weeks before the incident on October 22, 2019 to check in on each other. The two men smoked and talked on the porch. Mr. DaSilva Smith testified that Mr. Settimo asked if he was interested in selling drugs for him.

[36] Mr. DaSilva Smith further testified that Mr. Settimo showed him a video of Mr. Settimo shooting a shotgun. Mr. DaSilva Smith denies that he saw Mr. Settimo’s handgun that day or that he knew that Mr. Settimo possessed a handgun.

[37] Mr. DaSilva Smith testified that on October 22, 2019, he contacted Mr. Settimo on social media and asked him what he was doing. When Mr. Settimo told Mr. DaSilva Smith that his girlfriend, Kylie, was braiding his hair, Mr. DaSilva Smith asked if he could come over and have his hair braided too. Mr. Settimo agreed and said it would be $20. Mr. DaSilva Smith walked to Mr. Settimo’s house, which was not far from where he was staying.

[38] After arriving at Mr. Settimo’s house, Mr. DaSilva Smith introduced himself to Mr. Settimo’s mother, Ms. Porter, as “Jonathan.” Mr. DaSilva Smith and Mr. Settimo sat in the kitchen while getting their hair braided and also went outside to smoke. Mr. DaSilva Smith asked what Mr. Settimo’s plans were for the day, and Mr. Settimo told him he was going to Scarborough pick up a necklace he was having made. Mr. DaSilva Smith asked how he was getting there. Mr. Settimo said he would take the bus or a cab. Mr. DaSilva Smith then offered to see if he could get Mr. Settimo a ride.

[39] Mr. DaSilva Smith testified that Mr. Settimo asked if he knew anyone who would sell him an ounce of weed. Mr. DaSilva Smith called his friend Jordan, who agreed to drive Mr. Settimo to Scarborough and to sell him an ounce of marijuana for $180.

[40] As described earlier in these reasons, Jordan and Shane arrived in a white car. Mr. DaSilva Smith did not know Shane previously. Mr. DaSilva Smith, Mr. Settimo and Kylie got into the back seat of the vehicle. After they discovered that the jewellery store was closed, Mr. Settimo was frustrated and said he was hungry and wanted to get food. At Harveys, only Mr. Settimo and Kylie went in to get food. After they returned to the car, Mr. Settimo asked if they wanted to do something because they were already out there. Jordan and Shane suggested going to play pool.

[41] Jordan and Shane went into the Lyme Lounge pool hall, which is located in a business centre at 5330-5350 Finch Avenue East. Neither Mr. Settimo nor Mr. DaSilva Smith played pool, so they and Kylie hung out in the parking lot at 5310 Finch Avenue East. According to Mr. DaSilva Smith, they sat on the curb, ate the food, and smoked marijuana. They entered the school bus and took photos.

[42] Mr. DaSilva Smith testified that he did not know that Mr. Settimo had a firearm until he pulled it out in the school bus. Mr. DaSilva Smith testified that he did not hold the firearm but posed in photos with Mr. Settimo who was holding it. After they got off the school bus, Mr. Settimo became annoyed with Kylie for throwing away food, and said he wanted to leave. According to Mr. DaSilva Smith, Mr. Settimo was “grumpy” because there was no more weed. Mr. Settimo told Mr. DaSilva Smith to tell Jordan that they were leaving or to get his $20 return fare back.

[43] Mr. DaSilva Smith then went into the Lyme Lounge to tell Jordan that Mr. Settimo wanted to leave. Jordan no longer wanted to drive Mr. Settimo back to Oshawa but would drive him if Mr. Settimo bought the marijuana for $180. Mr. DaSilva Smith testified that “we all wanted to make some money off the weed. I was trying to get some free weed, they were trying to make money.”

[44] Mr. DaSilva Smith testified that Jordan gave him the marijuana that they were going to sell Mr. Settimo. Both of them walked back to the parking lot at 5310 Finch Avenue East. Shane went to the car. Mr. DaSilva Smith testified that he walked toward Mr. Settimo and asked him, “do you still want this” and told him it was $180. Mr. Settimo said yes and reached into his bag. As Mr. DaSilva Smith was looking down at the marijuana in his hand, he heard Jordan curse and run away. Mr. DaSilva Smith testified that he looked to up to see Mr. Settimo pointing his firearm at his face. Mr. DaSilva Smith estimated that they were two feet apart at the time.

[45] According to Mr. DaSilva Smith, Mr. Settimo fired the gun. Mr. DaSilva Smith felt something hit him in the eye or face, which felt hot. He was holding his eye with his right hand. Mr. DaSilva Smith testified that he reached for his knife with his right hand. He lunged at Mr. Settimo and grabbed him by the collar to push him down and make him lose his balance. Mr. DaSilva Smith could not recall whether he grabbed Mr. Settimo with both hands or with only his free hand.

[46] Mr. DaSilva Smith described the events as follows:

I looked up, I seen the gun in my face and in my head I was like, is this guy joking or something, like, I was in shock, I thought he was maybe joking. And, then next thing I knew a shot went off, something hit me in my face, it was burning hot, I was scared, I didn't, I didn't know what it was. I didn't know if it was, like, a bullet or something I don't know. All I know is something hit me in my eye, it really hurt. I was holding my eye with my hand and looking, like, down because, like, my face hurt. And, then when I looked down, it all happened really fast, but he didn't stop shooting through all of it. There was my – I had a knife on, like – it, it [slid] onto, like, my belt, like, two- there was a clasp and it was there and I just, I seen the knife and I grabbed it, opened it, and well, like, my face was hurting and stuff, I lunged at him and I was trying to push him over the barrier or over – I was trying to get him down so that I could get away. He was shooting, hit my face, and then my hat flew off and then, yeah, just happened very quick. He got into, like, a tussle, fighting and we were, we were wrestling and trying to – I was trying to get him down and he was trying to shoot me and that and eventually I'm pretty sure we both kind of fell over the side of the divider, like, not over the top but, like, off to the side, he was kind of standing closer to where the gap is between the pillars, so…

We both fell over, he landed, like, face down and I landed face down on top of him and I pushed up right away and I got out of there.

[47] Mr. DaSilva Smith estimated that the altercation was approximately 15 seconds long. He could not explain how he stabbed Mr. Settimo in the neck. He speculated that he was “pretty sure I cut him while tussling.” Mr. DaSilva Smith had no explanation for the stab wounds on Mr. Settimo’s back. He speculated that he might have stabbed Mr. Settimo while trying to get up from on top of him.

[48] Mr. DaSilva Smith testified that after he got up from the ground, he was still afraid that Mr. Settimo would shoot him from behind. He darted into some bushes and ran away to the vehicle where Jordan and Shane were. Mr. DaSilva Smith noticed blood but did not know where it came from. Once in the car, he noticed that he had a small cut on his pinkie finger. Mr. DaSilva Smith testified that he was in shock.

[49] Mr. DaSilva Smith denied that he planned to rob Mr. Settimo of his gun or his money. He testified that he did not know that Mr. Settimo had money on him, other than $180 for the marijuana he had agreed to buy. Mr. DaSilva Smith testified that they were friends, and that he went along in the car so that Mr. Settimo would not feel uncomfortable going in a vehicle with two people he did not know.

[50] On cross-examination, Mr. DaSilva Smith was asked why he did not seek help when Mr. Settimo had just pulled a gun on him and he thought he had been shot or hit in the face. Mr. DaSilva Smith testified that once he had time to check himself, he realized that he only had a cut on his little finger. He admitted that he was “on the run.” He was under conditions of house arrest and a weapons prohibition. He knew that if he called the police, he would have to go back to prison.

[51] Mr. DaSilva Smith testified that he did not know that he had stabbed Mr. Settimo until he found out through his lawyer.

Benny Settimo

[52] Mr. Settimo testified that Mr. DaSilva Smith came over to his house a week or two before the incident. Mr. Settimo testified that he showed Mr. DaSilva Smith the firearm at that time. Mr. Settimo was not asked whether he showed Mr. DaSilva Smith a video of himself shooting a shotgun. Mr. Settimo admitted that there may have been a discussion about drug trafficking but denied that he was a drug dealer.

[53] On October 22, 2019, after both he and Mr. DaSilva Smith had their hair braided, he asked if Mr. DaSilva Smith knew where he could get a ride. Mr. DaSilva Smith contacted someone and a white car arrived as described earlier. Mr. Settimo denied that he asked Mr. DaSilva Smith where he could buy weed or that he agreed to pay $180 for an ounce of marijuana.

[54] Mr. Settimo testified that after they arrived at the jewellery store and found that it was closed, Mr. DaSilva Smith and the others laughed at him and at the camouflage clothing he was wearing. Mr. DaSilva Smith testified that they made other “pitstops” before they went to Harveys and then the parking lot at 5310 Finch Avenue East. Mr. Settimo testified that Mr. DaSilva Smith and the other men were having “chitchats” but he did not hear what they were saying.

[55] Mr. Settimo testified that at first, only he and Kylie were waiting in the parking lot and Mr. DaSilva Smith joined later. Mr. Settimo testified that he and Mr. DaSilva Smith posed for photographs with the firearm, but that he held it throughout. After they took photos on the school bus, Mr. Settimo wanted to leave. Mr. DaSilva Smith left the parking lot to speak to Jordan and Shane.

[56] According to Mr. Settimo, Mr. DaSilva Smith returned to the parking lot with Jordan. In chief, Mr. Settimo testified that Jordan approached him and said something like “pussy boy run your shit.”[^1] Mr. Settimo testified that he understood this to mean “give up your stuff ‘cause you’re a bitch.” On cross-examination, Mr. Settimo testified that it was Mr. DaSilva Smith who made the statement.[^2]

[57] Mr. Settimo testified that Jordan tried to grab his bag from the front while Mr. DaSilva Smith, who was standing on a log, held him in a “headlock” or chokehold from behind. Mr. Settimo felt himself being jerked back and forth by both men. Mr. Settimo testified that he did not see a knife but felt “water” and pressure, and knew he had been stabbed.

[58] Mr. Settimo testified that he took the firearm out of the bag. He fired two or three shots in Jordan’s direction, who by then was running away. Mr. Settimo testified that he “turned him into a dancer” to describe how Jordan was weaving and bobbing as he ran away to avoid being shot.

[59] Mr. Settimo admitted firing a shot in Mr. DaSilva Smith’s direction. Mr. Settimo testified that Mr. DaSilva Smith was behind him, standing on a log, with his arm around his neck in a “headlock” while cutting his neck with the knife. Because Mr. DaSilva Smith was higher than Mr. Settimo, he looked up toward Mr. DaSilva Smith’s face. He pointed the gun and directed it to the side of Mr. DaSilva Smith’s face. He fired. The hat that Mr. DaSilva Smith was wearing was blown off. Mr. Settimo testified that he purposely aimed the gun to the side of Mr. DaSilva Smith’s face, as opposed to directly at it. Mr. DaSilva Smith screamed that something hit his eye and ran away while holding his hand over his eye. Mr. Settimo testified that that was the last shot he fired.

[60] On examination in chief, Mr. Settimo described the altercation as follows:

Q. Okay, what is Mr. Dasilva doing when you shoot the gun?

A. Felt like he was trying to put me in a headlock but then my neck was cut, so I don’t know, but my neck was cut, obviously, by him, whether it was an accident or something sharp on his shirt, I don’t – I, I can’t, I can’t tell you what was really going on behind me, but I felt something on my neck and I, I just stayed still and handled what was going on in front of me, because the last thing I’m worried about is Mr. Dasilva….

[61] Mr. Settimo went on to say that he did not want to say anything further. However, on cross-examination, Mr. Settimo provided significantly more detail:

Q. And, so your evidence is that you have a knife at your neck at the same time, before or after this individual ran and grabbed your bag?

A. Did you not hear me the first time? The knife was on my neck before the individual reached for my bag. I will not explain that again. I think, Your Honour, heard that. I think that everybody else could type that down slowly. I will not answer that question again. Somebody got on the log behind me, put a knife to my throat, started cutting it and said you, run your shit while the guy grabbed my bag. I hugged it like a football, unzipped it, pulled out the weapon and while my neck – I can feel it getting to my adam’s apple and it was a milli-inch from my artery….

[62] Mr. Settimo testified that he ran into a bush to get away and was stabbed in the back a couple of times. He still had the firearm in his hand. Mr. Settimo asked Kylie to call 911 but she was not responding. He held his neck and ran for help. At first no one would help him, and Mr. Settimo realized he had to get rid of the firearm. Eventually, someone called 911 and the police arrived.

PC Nicholas Adams

[63] Police Constables (PCs) Nicholas Adams and Joshua Goulah responded to a 911 call and attended at 5350 Finch Avenue East at 5:55 p.m. They located Mr. Settimo, who was holding a blue blanket to his neck and sitting on a curb with a female. Mr. Settimo was wide-eyed and breathing heavily and appeared to be in shock.

[64] PC Adams asked Mr. Settimo to show him what was under the blanket. He saw a horizontal wound approximately two inches long on the left side of Mr. Settimo’s neck. The wound was open and gaping and seeping blood. He later saw a wound on Mr. Settimo’s right shoulder.

[65] Once the paramedics arrived, PC Adams walked around the area and located a shoulder bag a short distance away. He drew a diagram showing the location of Mr. Settimo and the bag.

[66] PC Adams also followed the ambulance to Sunnybrook Hospital where Mr. Settimo was taken. They arrived at the hospital at 6:26 p.m. PC Adams testified that he and PC Goulah stayed in the trauma room with Mr. Settimo. PC Adams took photos of Mr. Settimo after he came out of surgery. He took photos of the area of the neck where he saw the original injury as well as injuries to Mr. Settimo’s right hand. There is also a photograph showing a nine-centimetre long scratch on Mr. Settimo’s forehead.

[67] PC Adams had written notes of the utterances made by Mr. Settimo. PC Adams’ notes state that while being attended to by the paramedics, Mr. Settimo said that he knew the suspect by the name “J” and that he knew him from the Thornton Road and Adelaide Street area in Oshawa. Mr. Settimo was “adamant” that he had no further information about the suspect and that he was not doing anything wrong at the time of the incident.

PC Joshua Goulah

[68] PC Joshua Goulah has been an officer with the Toronto Police Service for two years. PC Goulah was called as a witness by the defence.

[69] PC Goulah accompanied Mr. Settimo in the ambulance and attempted to take notes of Mr. Settimo’s utterances. PC Goulah entered notes into the Versadex system at 1:00 a.m. on October 23, 2019.

[70] According to PC Goulah, Mr. Settimo advised him that he had $1,000 in his jacket and the crotch of his pants and was looking for a jewellery store in Scarborough. Mr. Settimo said he recognized the suspect “J” from the Thornton Road and Adelaide area of Oshawa. He was unable to describe the attackers but described one as having braids and light/fair skin.

[71] PC Goulah’s notes state that Mr. Settimo said that he was not able to observe much as everything happened so fast or that while he was on the ground, and that the males continued to attack him, and this is when one of them cut his throat. PC Goulah could not recall whether Mr. Settimo told him this or whether the information was conveyed to him by PC Adams. PC Goulah also testified that Mr. Settimo’s story kept changing.

[72] PC Goulah described Mr. Settimo as “excited” and “panicked” and stated that he refused to answer more questions. When asked whether Mr. Settimo was cooperative, PC Goulah testified that he would not describe him as uncooperative, because Mr. Settimo was dealing with his wounds. He described Mr. Settimo as being in shock.

DCs Erika Machachek and Robert Jitta

[73] On the night of October 22, 2019, Detective Constables (DCs) Erika Machachek and Robert Jitta of the Toronto Police Services Forensic Investigation Services (FIS) attended the location of the struggle at 5310 Finch Avenue East (Scene 1) and the parking lot where Mr. Settimo was located at 5230-5250 Finch Avenue East (Scene 2). They arrived at Scene 2 at approximately 8:47 p.m. and were directed to Scene 1. Both testified to the evidence that was located at the scene.

[74] At Scene 1, DCs Machachek and Jitta marked the items that were located in the area of the school bus. These included:

Two shell casings;
A D-ring;
A broken clasp;
A black toque;
A broken pair of sunglasses; and
Fast food containers.

[75] There were two concrete barriers at the edge of the parking lot. On the concrete barrier to the right, police marked what appear to be blood stains. In front of the left concrete barrier were numerous yellow pillars lying on the ground. Beyond the concrete barriers were the grass field and bushes.

[76] The broken strap on Mr. Settimo’s bag supports that there was a struggle over Mr. Settimo’s bag. DC Jitta testified that Mr. Settimo’s backpack had a D-ring on one side where the strap attached to the bag, but the D-ring was missing from the other side of the bag where the other end of the strap would attach. It is likely that the D-ring found on the ground near the school bus was from Mr. Settimo’s bag.

[77] On a paved path extending beyond the concrete barriers and into the area of grass and brush the following items:

Two shell casings; and
A blood stain.

[78] A short distance away from the path, in the grass and brush, police located loose cash totaling approximately $486.50. The cash was determined to belong to Mr. Settimo.

[79] The blood stain and money support Mr. Settimo’s testimony that he ran into the bush to get away from Mr. DaSilva Smith.

[80] The location of the shell casings support Mr. Settimo’s testimony as to the direction in which he aimed his firearm. Three casings were located beyond the concrete barrier, two along the paved path and one in an area littered with empty plastic containers. One casing was located in the parking lot in the area near the concrete barriers and yellow pillars on the ground. This supports Mr. Settimo’s testimony that he fired three shots at Jordan as he ran away and one shot up into the air in the direction Mr. DaSilva Smith’s head as he stood over him.

[81] At Scene 2, a short distance away, police located and marked the following items:

A blue blanket;
A lighter;
A camouflage pattern jacket; and
A small camouflage pattern backpack with a single shoulder strap that was connected to the bag on only one end.

[82] As noted above, Mr. Settimo was located by PCs Adams and Goulah at Scene 2 holding a blue blanket to his neck. The jacket and bag belonged to Mr. Settimo.

[83] The shell casings located at Scene 1 support the number of shots that Mr. Settimo testified to firing. A casing was located in the area where the D-ring and clasp were also located.

[84] DCs Machacek and Jitta identified the shell casings as unfired or blank rounds. The Crown does not tender DC Machacek or DC Jitta as a firearms expert and does not rely on this evidence. Mr. DaSilva Smith testified that he did not know whether the firearm was a handgun or starter pistol.

[85] Neither the firearm nor the knife was located. The police went beyond the concrete barrier but did not search the field at length. They did not take measurements and could not say how far certain items, such as the money and blood stains, were located. DC Jitta testified that they did not go further into the field because it was dark and muddy, and because it was the path taken by the victim, Mr. Settimo, as opposed to the suspect.

[86] DC Machachek also took photographs of the clothing that Mr. Settimo was wearing that day. The T-shirt worn by Mr. Settimo was stained with blood on the front and back. On the back, the stains were around the right shoulder-blade area. A tank top that Mr. Settimo was wearing had two smaller cuts approximately one centimetre long, one to the left of the right shoulder blade and one to the left of it. It was also stained with blood.

PC Alexi Prodamos

[87] PC Prodamos has been with the Toronto Police Service for 21 years. He attended the Scene 2 on October 22, 2019, and then at Sunnybrook. PC Prodamos retrieved the clothing and other items that were removed from Mr. Settimo.

[88] PC Prodamos testified that $3,005 in cash was located in Mr. Settimo’s clothing. He turned over all of the clothing to the FIS officers and put the cash to the storage locker.

Nancy Porter

[89] Ms. Porter testified that on October 22, 2019, Mr. DaSilva Smith came to her house at approximately 2 p.m. to visit her son, Mr. Settimo. Ms. Porter could not recall whether Mr. DaSilva Smith introduced himself to her. She remembered saying hello to Mr. DaSilva Smith but could not recall the details of any conversation with him.

[90] At some point, Ms. Porter went to the bank to withdraw money that she was holding for Mr. Settimo. At the same time, she went to pick up Mr. Settimo’s son from school. Ms. Porter gave Mr. Settimo the $3,500 that she withdrew from the bank for him. Mr. Settimo had told her that he was going to the flea market to pick up a chain pendant that he wanted to buy.

[91] Ms. Porter testified that she saw the white car pull up in front of her house and that Mr. Settimo, Mr. DaSilva Smith and Kylie got in. Ms. Porter was aware that Mr. Settimo had the $3,500 cash with him but was not aware that he had a firearm.

[92] Ms. Porter testified that she next saw Mr. Settimo in the hospital after surgery, where he was unconscious, with tubes down his throat and a heart monitor. Mr. Settimo was in the hospital for three to four days. She testified that the cut on Mr. Settimo’s neck was larger than she expected it to be. She also saw the cuts on his back, which she described as not serious. Three days after Mr. Settimo was released from the hospital, he became sick with pneumonia and had to go to emergency.

Credibility and Reliability

[93] No credibility or reliability issues were raised in respect of Ms. Porter’s testimony. I accept her evidence.

[94] The testimony of all the police officers was both credible and reliable. All of the officers testified from their contemporaneous notes of the investigation. The defence has raised no specific issues relating to their credibility and they were not significantly challenged on cross-examination.

[95] The notes that PCs Adams and Goulah made of Mr. Settimo’s utterances are addressed in the context of Mr. Settimo’s credibility.

Mr. DaSilva Smith

[96] Mr. DaSilva Smith testified in a straight-forward manner and was not evasive or defensive. Nonetheless, after a careful consideration of Mr. DaSilva Smith’s evidence in the context of the evidence as a whole, including the physical evidence and the other witnesses’ testimony, I do not accept his account of the altercation between him and Mr. Settimo.

[97] According to Mr. DaSilva Smith’s testimony, he was about to give Mr. Settimo the marijuana that he had agreed to purchase when Mr. Settimo, suddenly and without warning, pulled out his firearm and started to shoot. Until that point, Mr. DaSilva Smith and Mr. Settimo were hanging out without incident. There was no conflict or ill will between them. In fact, Mr. Settimo had looked out for Mr. DaSilva Smith when they were both incarcerated and checked up on him after he was released.

[98] On Mr. DaSilva Smith’s evidence, Mr. Settimo made no threat or demand when he pulled out the firearm. It would be illogical for Mr. Settimo to point, and then shoot, the firearm without saying anything, for example, demanding the marijuana for free. I also find it unlikely that Mr. Settimo would have objected to paying $180 for the marijuana which, on Mr. DaSilva Smith’s evidence, had been agreed to earlier. Mr. Settimo had over $3,000 in cash on him that day. In addition, earlier that day, Mr. Settimo told Mr. DaSilva Smith that he did not have to pay Kylie $20 for the braid because he would settle it with her. There is no evidence that the marijuana was handed over to Mr. Settimo.

[99] Moreover, it would have been foolish for Mr. Settimo to pull a firearm on Mr. DaSilva Smith and Jordan when they all knew where he lived. Before he went in the vehicle with Mr. DaSilva Smith and the two other individuals, Mr. Settimo had been cautious about giving them his address before he had an opportunity to check them out. It is highly unlikely that he would then cause an incident that could result in danger to himself or his family.

[100] The defence submits that the fact that Mr. Settimo’s behaviour sounds irrational does not mean that it did not happen because, at trial, he demonstrated himself to be unpredictable and erratic. The defence further submits that Mr. Settimo may have been under the influence of medication, because he referred to being hooked on hydromorphone after an earlier incident. Mr. Settimo later denied that he was under the influence of medication on the day of the incident.

[101] Even if I accept that Mr. Settimo might behave in an irrational manner, I find it implausible that Mr. Settimo would pull out a gun without any provocation when Mr. DaSilva Smith was about to give him what he wanted.

[102] According to Mr. DaSilva Smith’s testimony, he lunged directly for Mr. Settimo and grabbed his collar to try to force him down, even though Mr. Settimo kept shooting at him. It seems implausible that Mr. DaSilva Smith would grab and struggle with Mr. Settimo, while Mr. Settimo continued to shoot from a distance of less than arm’s length. Mr. Settimo’s arm remained free, meaning that he could have shot Mr. DaSilva Smith. Mr. DaSilva Smith, who is at least six inches taller than Mr. Settimo, did not try to grab his arm or to destabilize him otherwise. When asked whether he had one hand or both hands on Mr. Settimo, Mr. DaSilva Smith stated that it was one hand, because his other hand was holding the knife. Mr. DaSilva Smith was thus fighting off Mr. Settimo, who was shooting his gun, with one hand, his non-dominant hand.

[103] In addition, Mr. DaSilva Smith testified that after Mr. Settimo shot the firearm, he felt something hit his face or eye, and he was holding his eye with his right hand. Mr. DaSilva Smith’s testimony is that despite the intense heat and pain, and the belief that he had been shot in the face, he then used his right hand to pull out his knife. If Mr. DaSilva Smith and Mr. Settimo were struggling face-to-face, as Mr. DaSilva Smith testified, and Mr. Settimo was pointing the gun at him with his right hand while they were, it would have been more likely that the shot would have gone to Mr. DaSilva Smith’s left side as opposed to his right.

[104] Moreover, Mr. DaSilva Smith testified that he did not know how he stabbed Mr. Settimo. His explanation was that “I assume that when we were tussling and I had the knife in my hand that it sliced him in his neck.” Mr. DaSilva Smith also guessed that he cut Mr. Settimo’s back while trying to get up from the ground. In other words, he speculated that all the wounds were inflicted inadvertently.

[105] However, if Mr. DaSilva Smith was holding the knife as he described, with the blade in his right hand, while grabbing Mr. Settimo from the collar It is difficult to envisage how the knife cut the front left side of Mr. Settimo’s neck. The blade of the knife would have been pointing out to his right side away from Mr. Settimo’s neck.

[106] In addition, the wound on Mr. Settimo’s neck was not superficial. It was described in the medical notes a significant, V-shaped cut across the front of his neck from the left side to the centre. The notes described the cut was “quite deep” and noted “an extensive stab wound tract which passed in very close proximity to the carotid sheath structures.” It resulted in “significant neck hematoma and distortion of the neck structures.” The wound was not an inadvertent scrape with a knife. Given the nature and extent of the wound, it would be reasonable to expect that Mr. DaSilva Smith would know how it was inflicted.

[107] The wounds on Mr. Settimo’s back were superficial and could have been inflicted inadvertently. However, the location, in the area of his right shoulder blade, is not consistent with Mr. DaSilva Smith’s explanation. If Mr. DaSilva Smith poked or scraped Mr. Settimo with the knife while trying to get up, the wounds would be expected to be located on the peripheral areas of Mr. Settimo’s back or shoulder, as opposed to the shoulder-blade area. Moreover, the injuries were not scrapes but were two one-centimetre long cuts.

[108] Mr. DaSilva Smith’s account of how Mr. Settimo fell to the ground, face down, and how he fell on top of him is also inconsistent with the face-to-face struggle that he described. When asked how it was possible that they landed in this manner, Mr. DaSilva Smith offered a hypothetical explanation that if there was something behind someone when being pushed, they would not fall straight behind, but would “spin.” If Mr. DaSilva Smith was pushing Mr. Settimo directly from the front, and the concrete barrier was behind, it is also possible that he would fall straight back over the barrier, in which case, he would land on his back and not his stomach.

[109] While the Crown argues that the items located at Scene 1 show the location of the altercation to be closer to the school bus than to the concrete barriers, I find the evidence on this to be insufficiently conclusive. Mr. Settimo testified to being backed into an area where there was grass and bushes, which was just beyond the concrete barriers. There was also blood spatter on the concrete barrier.

[110] Mr. DaSilva Smith testified that after he and Mr. Settimo landed on the ground, Mr. DaSilva Smith got up and darted away through the bushes because he was worried about being shot in the back. However, according to Mr. DaSilva Smith’s testimony, Mr. Settimo dropped the firearm when they fell and it was a short distance from his hand. After struggling with Mr. Settimo to attempt to disarm him, it is illogical that Mr. DaSilva Smith would then run away, leaving the firearm near Mr. Settimo, and still taking steps to avoid getting shot. If Mr. Settimo was on the ground, face-down, and if Mr. DaSilva Smith was still concerned about getting shot, rather than take evasive steps, it would have made more sense for Mr. DaSilva Smith to kick or throw the gun out of Mr. Settimo’s reach.

[111] There were also inconsistencies in Mr. DaSilva Smith’s testimony. In chief, Mr. DaSilva Smith testified that “[a]ll I know is something hit me in my eye” when Mr. Settimo fired the gun, and that he covered his eye with his right hand. On cross-examination, Mr. DaSilva Smith denied that there was anything in his eye and testified that he felt his face get hot.

[112] Similarly, Mr. DaSilva Smith’s testimony about when he first noticed blood was equivocal. In chief, he testified that he first noticed blood on his hand when running to the car, and that he inspected himself in the car and realized that he had cut his little finger. On cross-examination, it was put to Mr. DaSilva Smith that he did not notice blood during the tussle. Mr. DaSilva Smith responded: “I noticed blood but I didn’t notice if it was, like, I didn’t know where it was coming from. Like I said, I could have been shot, he was shooting, I had a knife in my hand. There was blood.” Later in cross-examination, however, Mr. DaSilva Smith confirmed that the first time he noticed blood was when he was running away.

[113] Given the significant wound to Mr. Settimo’s neck, it is not credible that Mr. DaSilva Smith did not see Mr. Settimo’s neck bleeding or blood on his own hand during their struggle. Further, Mr. DaSilva Smith testified that after the struggle with Mr. Settimo, he still had the knife in his hand. Again, given the extent of the injury to Mr. Settimo, it is likely that there was blood on the knife. As a result, I do not accept Mr. DaSilva Smith’s evidence that he did not know that he had stabbed Mr. Settimo.

[114] The behaviour to which Mr. DaSilva Smith testifies is highly inconsistent. On Mr. DaSilva Smith’s evidence, he lunged for Mr. Settimo while being shot at. Yet, he ran away when Mr. Settimo was on the ground, without having neutralized the threat of the gun and without knowing whether Mr. Settimo was incapacitated, and still worried that he could be shot in the back.

[115] For the foregoing reasons, I do not find Mr. DaSilva Smith’s testimony to be credible and I do not accept his account of the incident. Based on the implausibility of Mr. DaSilva Smith’s evidence, I am not left with a reasonable doubt.

Mr. Settimo

[116] Mr. Settimo was a reluctant witness who had to be compelled to attend court under a warrant for his arrest. He openly questioned the need for his testimony and the need for the trial. Mr. Settimo expressed extreme discomfort about testifying in court. Despite being directed and reminded by the court, Mr. Settimo’s testimony frequently ventured into speculation, opinion and argument.

[117] Mr. Settimo did not listen to the questions being asked, both in examination-in-chief and on cross-examination, and resisted answering them. Instead, Mr. Settimo frequently used his testimony to suit his own purposes. In examination in chief, Mr. Settimo stated that he did not want Mr. DaSilva Smith to be punished. He testified that he had no ill will toward Mr. DaSilva Smith and advocated for him to be released. He expressed his wish that Mr. DaSilva Smith get his life back on track. Needless to say, I place no weight on those statements, but mention them for their impact on the credibility of Mr. Settimo’s testimony.

[118] Not surprisingly, on examination in chief, Mr. Settimo was evasive. Even though it was not a disputed fact, Mr. Settimo resisted identifying Mr. DaSilva Smith by name as the person who stabbed him in the neck. He went so far as to speculate that Mr. DaSilva Smith had “something sharp on his shirt,” and that is how he was cut. Mr. Settimo speculated, without solicitation, about Mr. DaSilva Smith’s motivation and other matters that were not relevant.

[119] By contrast, in cross-examination, Mr. Settimo was defensive and impatient. He became annoyed by defence counsel’s attempts to put contradictory statements or other evidence to him or to require answers to the questions being asked. He blamed and criticized defence counsel, saying “you’re making me say things” and “the more you’re getting me, the more I’ll talk.” As will be detailed further below, Mr. Settimo’s answers changed between his testimony in chief and on cross-examination. Mr. Settimo was excessively preoccupied with the objective behind the questions being asked, when his sole purpose should have been to answer truthfully.

[120] Mr. Settimo has a significant criminal record. Mr. Settimo refused to answer questions about his criminal record, stating that he did not remember any of the underlying facts. Similarly, Mr. Settimo testified that he did not remember how he acquired the firearm.

[121] Mr. Settimo denied telling the police anything immediately after he was stabbed. He denied making any of the statements that PCs Adams and Goulah had recorded. Mr. Settimo admitted that he intentionally misled the police when he said he did not know anything about the suspect in order to protect Mr. DaSilva Smith. When asked about why he would not tell the police anything, Mr. Settimo said it was “common sense” and that he was “looking out for the code.”

[122] The defence submits that I must give myself a Vetrovec warning and exercise caution about relying on Mr. Settimo’s testimony. The Crown disputes this and argues that Mr. Settimo is not the type of witness to whom Vetrovec warnings generally apply, such as “jailhouse informants” or co-conspirators. The Crown submits that the core of Mr. Settimo’s testimony remained consistent as between examination in chief and in cross-examination.

[123] In R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, the Supreme Court held that in respect of the testimony of certain “unsavoury” witnesses, the jury must be warned about the danger of relying on their testimony without confirmation.

[124] In this case, whether framed as a Vetrovec warning per se, for the reasons that follow, I find it appropriate to instruct myself to approach Mr. Settimo’s evidence with caution. I must consider whether his evidence on key points is confirmed by other independent evidence. Confirmatory evidence is that confirms relevant or important parts of Mr. Settimo’s evidence such that the court’s faith in his evidence is restored: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 41-43. While I may rely on Mr. Settimo’s evidence on key points even if it is not confirmed by independent evidence, I must exercise great caution in doing so.

[125] Mr. Settimo’s testimony raises significant concerns. Despite explicit and repeated direction, Mr. Settimo demonstrated an inability to keep his testimony to facts within his knowledge. Mr. Settimo’s reluctance to provide details when examined by the Crown and, subsequently on cross-examination, his volunteering of unsolicited details when he became upset raises significant concerns about the credibility and reliability of his evidence. It signals that, rather than answer the questions posed to him fully and truthfully, irrespective of who was asking them, that Mr. Settimo responded as suited him at the time.

[126] In chief, Mr. Settimo stated at a couple of points that he had given sufficient information and was unwilling to provide further detail. He also stated a couple of times that he could not remember specific details. On cross-examination, however, he insisted that he was “crystal” clear. Mr. Settimo implied that he was addicted to hydromorphone after a previous stabbing incident, but later denied that he was on any medication at the time of the incident.

[127] On examination in chief, Mr. Settimo tried to exonerate or minimize Mr. DaSilva Smith’s role. Mr. Settimo expressed “nothing but love” for Mr. DaSilva Smith. He speculated that Mr. DaSilva Smith was a pawn and did not know that Jordan intended to rob him of his firearm. Mr. Settimo testified that Jordan told Mr. DaSilva Smith to control him, or words to that effect. Later, Mr. Settimo speculated that Mr. DaSilva Smith had to take his gun to prove something or as some kind of initiation. At one point, Mr. Settimo mused that Kylie was involved. None of this was responsive to the questions.

[128] The nature and specifics of Mr. Settimo’s testimony changed significantly on cross-examination. While he previously tried to minimize Mr. DaSilva Smith’s role, he became upset on cross-examination and fully implicated Mr. DaSilva Smith. In contradiction to his earlier testimony, Mr. Settimo went so far as to say that it was Mr. DaSilva Smith, and not Jordan, who made the comment that he understood to be a demand for the bag. When his earlier statement was put to him, Mr. Settimo denied making the statement. During the course of Mr. Settimo’s evidence, Mr. DaSilva Smith went from being a pawn to being the main perpetrator. When asked about his earlier testimony, Mr. Settimo said he did not remember. On cross-examination, it was no longer something sharp on Mr. DaSilva Smith’s shirt that cut Mr. Settimo, it was Mr. DaSilva Smith “sawing” his neck.

[129] On cross-examination, Mr. Settimo speculated that Mr. DaSilva Smith was setting him up all along, including when he saw him a couple of weeks earlier, to get his firearm. He speculated that Mr. DaSilva Smith and his friends made multiple stops to discuss how they would get it.

[130] Mr. Settimo was also prone to exaggeration. He testified that he had been cut from “ear to ear,” that fries were coming out of his neck, and that he had to hold his neck to keep his head from falling off.

[131] Mr. Settimo refused to provide any information about his criminal record or how he acquired the firearm, stating that he had no recollection.

[132] The defence put to Mr. Settimo statements contained in the notes of PCs Adams and Goulah. The defence did not seek to adduce the statements for the truth of their contents and they are not admissible for that purpose. The defence submits that Mr. Settimo intentionally misled the officers and that this negatively impacts his credibility.

[133] Specifically, PCs Adams and PC Goulah noted that Mr. Settimo told them the following:

He knew Mr. DaSilva Smith as “J.” from the Thornton Road and Adelaide Street area of Oshawa;
One of the suspects had light/fair skin and braids but he had no other information about the suspects;
He had $1,000 in cash in his pants and jacket;
He did not observe much because everything happened so fast; and
He was on the ground when the males continued to attack him and this was when one of the males cut his throat.

[134] It is undisputed that Mr. Settimo knew Mr. DaSilva Smith from the CECC, and not from a certain area in Oshawa. In addition, Mr. Settimo knew Mr. DaSilva Smith as “J.J.” and not “J.” as he told the officers. Mr. Settimo also had more than $3,000 in cash.

[135] On cross-examination, Mr. Settimo admitted that when he said he could not provide any more information about the suspects, he was misleading the officers to protect Mr. DaSilva Smith. Mr. Settimo also admitted that he did not want police to discover the casings from the firearm he had discharged. Mr. Settimo denied making the other statements to the officers. Mr. Settimo was adamant that he was never on the ground and that he would never have told police that he was. Mr. Settimo refused to answer further questions about the statements, saying that he did not know the officers and that he did not say anything to police.

[136] In my view, the fact that PCs Adams and Goulah recorded the statements supports that Mr. Settimo made them. The statement about knowing the suspect from the Thornton Road and Adelaide Street area is specific, as is the reference to “J”. PC Goulah’s notes include that Mr. Settimo said he was looking for a jewellery store in Scarborough, which he would not have known unless Mr. Settimo told him. Both officers attempted to record the circumstances that they discovered and the statements made by Mr. Settimo as accurately and completely as possible. At the time, because the suspect was at large, there was a strong interest in obtaining accurate information. Both officers noted the challenges in doing so because of Mr. Settimo’s state of shock and his injuries.

[137] I find that while Mr. Settimo attempted to mislead the officers, not all of the statements were made for that purpose. It is quite likely that, given his state of shock, pain and confusion, Mr. Settimo made some of the statements without any particular objective in mind. As a result, in terms of Mr. Settimo’s credibility, I place limited weight on the statements made by Mr. Settimo to police immediately after the incident.

[138] Given the inconsistency and selectiveness of Mr. Settimo’s evidence, his testimony raises significant credibility and reliability concerns. Perhaps somewhat paradoxically, I believe that for the most part, Mr. Settimo was trying to tell the truth. He was forthright about possessing and shooting the firearm on the day of the incident. However, his testimony was occasionally incoherent. On cross-examination, he often responded impulsively. There were moments when he appeared to be overtaken by emotion, whether anger or distress. He admitted to rambling and sometimes appeared not to realize what he was saying. His discomfort at being compelled to testify was palpable. He was ill at ease with the courtroom process and setting. Mr. Settimo stated that he was anxious and suffered from post-traumatic stress disorder from an unrelated incident. While I would distinguish Mr. Settimo from an “unsavoury” witness in the sense of someone who is “prone to favour personal advantage over public duty” (Khela, at para. 4), I find it appropriate to approach Mr. Settimo’s evidence with caution and to look for confirmatory evidence on key issues: R. v. Roks, 2011 ONCA 63, 2011 ONCA, at para. 63.

Findings

Attempted Murder

[139] The Crown submits that the circumstances support an inference that Mr. DaSilva Smith intended to kill Mr. Settimo. The Crown points specifically to the fact that Mr. DaSilva Smith put Mr. Settimo in a headlock and stabbed him in the neck, a vital part of the anatomy, and submits that it was only by luck that he did not cut a vital artery.

[140] In this case, I find that the Crown has failed to demonstrate beyond a reasonable doubt that Mr. DaSilva Smith intended to kill Mr. Settimo.

[141] The circumstances that were found to support an intent to kill in the attempted murder cases cited by the Crown included threats or comments made by the accused reflecting their state of mind, the number of times the accused stabbed the complainant, and the extent of the injuries. See: R. v. Foster, 2018 ONSC 6699, 151 W.C.B. (2d) 353; Martin.

[142] In R. v. Rajanayagam, [2001] O.J. No. 393 (Sup. Ct. J.), at paras. 22-24, aff’d [2001] O.J. No. 3236 (C.A.), the court found no intent to kill, as opposed to an intent merely to wound, where the bullets were not shot at a vital part of the anatomy and where there was no evidence of motive, plan or threats.

[143] In this case, the fact that Mr. DaSilva Smith stabbed Mr. Settimo in the neck, a vital part of the anatomy, and the seriousness of the injury would support an intent to kill. While the medical records do not state to how deep the wound was, it resulted in a significant neck hematoma. It is clear that the wound was not superficial.

[144] However, based on both Mr. DaSilva Smith and Mr. Settimo’s evidence, Mr. DaSilva Smith did not say anything before or while stabbing Mr. Settimo that would indicate that he intended to kill him. No threat or statement was made. Moreover, Mr. DaSilva Smith did not continuously stab Mr. Settimo. Based on both of their testimony, Mr. DaSilva Smith ran away after stabbing Mr. Settimo in the neck. On Mr. Settimo’s evidence Mr. DaSilva Smith fled because Mr. Settimo fired the gun, and Mr. DaSilva Smith believed something had been hit in the eye.

[145] Neither Mr. DaSilva Smith nor Mr. Settimo could recall how the wounds on Mr. Settimo’s back were inflicted. Mr. DaSilva Smith speculated that he cut Mr. Settimo while trying to get up from on top of him, which I have found to be an unlikely explanation. Mr. Settimo did not initially know that he was also stabbed in the back but believed that he was stabbed when hiding in the bush. This is inconsistent with Mr. DaSilva Smith having run away holding his eye. In any event, the wounds to Mr. Settimo’s back were superficial and would not support an intent to kill.

[146] The Crown has failed to demonstrate beyond a reasonable doubt that Mr. DaSilva Smith intended to kill Mr. Settimo. Mr. DaSilva Smith is acquitted of the count of attempted murder.

Aggravated Assault

[147] Mr. DaSilva Smith used the knife he was carrying and cut Mr. Settimo across the neck. For the reasons given above, I reject Mr. DaSilva Smith’s testimony that he inadvertently cut Mr. Settimo while they were tussling. The wound, which was on the left side of Mr. Settimo’s neck confirms Mr. Settimo’s testimony that Mr. DaSilva Smith cut him while holding him from behind. I find that Mr. DaSilva Smith could have had Mr. Settimo in a chokehold while pulling the knife from the left side of Mr. Settimo’s neck to the centre.

[148] I am satisfied on the evidence that the Crown has demonstrated beyond a reasonable doubt that Mr. DaSilva Smith intentionally applied force to Mr. Settimo, that Mr. Settimo did not consent to the force Mr. DaSilva Smith intentionally applied, that Mr. DaSilva Smith knew that Mr. Settimo did not consent to the force, and that the force wounded, maimed, disfigured or endangered Mr. Settimo’s life. The wound was sufficiently deep that it required surgery to repair.

[149] It is therefore necessary to consider whether the Crown has demonstrated beyond a reasonable doubt that the defence of self-defence cannot apply.

Self-Defence

[150] As noted earlier in these reasons, there is an air of reality to the defence of self-defence. The Crown must prove beyond a reasonable doubt that one of the three elements of the defence of self-defence identified above does not apply.

[151] In determining whether the act committed was reasonable in the circumstances, the court must consider all the circumstances, including, but not limited to, the following factors:

(i) the nature of the force or threat;

(ii) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(iii) the accused’s role in the incident;

(iv) whether any of the people involved used or threatened to use a weapon;

(v) the size, age, gender and physical capabilities of those involved in the incident;

(vi) the nature, duration and history of any relationship among the people involved in the incident, including any prior use or threat of force, and the nature of that force or threat;

(vii) any history of interaction or communication among the people involved in the incident;

(viii) the nature and proportionality of the accused’s response to the use or threat of force; and

(ix) whether the accused’s act was in response to a use or threat of force that he knew was lawful.

Did Mr. DaSilva Smith have reasonable grounds to believe that force was being used or threatened against him by Mr. Settimo?

[152] It is undisputed that Mr. DaSilva Smith and Mr. Settimo were friends, that there were no underlying issues or tensions between them, and that they were not having an argument when the assault took place. There is no evidence of any previous altercation between them.

[153] Mr. DaSilva Smith is significantly larger than Mr. Settimo, who is approximately five feet, six inches tall. On cross-examination, Mr. DaSilva Smith would not state his height but admitted that he is over six feet tall. Mr. DaSilva Smith knew that Mr. Settimo had a firearm because he took it out when they were in the school bus taking photographs. Mr. Settimo did not know that Mr. DaSilva Smith had a knife.

[154] Whether Mr. DaSilva Smith had reasonable grounds to believe that Mr. Settimo was using or threatening the use of force against him depends to a large extent on the sequence of events, specifically, whether Mr. Settimo took out his firearm before or after Mr. DaSilva Smith held a knife to his neck and stabbed him.

[155] Based on the evidence, I find it likely that Mr. DaSilva Smith held a knife to Mr. Settimo’s neck because he and Jordan wanted to take Mr. Settimo’s gun and that Mr. Settimo pulled out his firearm because Mr. DaSilva Smith was holding a knife to his neck. However, that likelihood is not sufficient to find that the Crown has proven beyond a reasonable doubt that self-defence does not apply.

[156] Mr. Settimo testified that he pulled out his firearm when Jordan was grabbing his bag and when Mr. DaSilva Smith was behind him cutting his neck. His testimony on this point was generally consistent. However, on cross-examination, when defence counsel put to Mr. Settimo that Mr. DaSilva Smith stabbed him in the neck because he was pointing a gun at him, Mr. Settimo testified as follows:

Q. So, I’m going to put it to you, sir, that Mr. DaSilva Smith did end up hitting you in the neck with a knife, sir. And that’s after you pointed a gun at his face. Agree or disagree?

A. I agree, since you’re a defence attorney.

[157] In all likelihood, Mr. Settimo’s agreement was a facetious retort as opposed to genuine agreement. However, this answer serves as an example of why it is difficult to place a significant degree of reliance on Mr. Settimo’s evidence. He treated cross-examination as a sparring match with defence counsel as opposed to an occasion requiring the utmost truthfulness and solemnity.

[158] Because of the significant credibility and reliability concerns that I have about Mr. Settimo’s evidence, I am unable to find that Mr. DaSilva Smith held the knife to Mr. Settimo’s neck before Mr. Settimo pointed the firearm at him. There is no independent evidence to confirm Mr. Settimo’s version of the event. The two individuals who were also present, Kylie and Jordan, were not called as witnesses. If Mr. Settimo pulled out and pointed his firearm before Mr. DaSilva Smith stabbed him or held the knife to his neck, Mr. DaSilva Smith had reasonable grounds to believe that force was being used or threatened against him.

[159] While I do not accept Mr. DaSilva Smith’s testimony that Mr. Settimo pointed his firearm when he was about to hand over the marijuana, and therefore before Mr. DaSilva Smith pulled out his knife, I am left with a reasonable doubt as to the order in which the events transpired.

[160] As a result, the Crown has not demonstrated beyond a reasonable doubt that Mr. DaSilva Smith did not have reasonable grounds to believe that force was being used or threatened against him by Mr. Settimo.

Did Mr. DaSilva Smith stab Mr. Settimo for the purpose of protecting himself from the use or threat of force by Mr. Settimo?

[161] Based on the foregoing analysis, because I am unable to find beyond a reasonable doubt that Mr. DaSilva Smith held a knife to Mr. Settimo before Mr. Settimo pointed his firearm at him, I cannot find that Mr. DaSilva Smith did not stab Mr. Settimo for the purpose of protecting himself from the use or threat of force by Mr. Settimo. If Mr. Settimo pulled out his firearm before Mr. DaSilva Smith stabbed him, Mr. DaSilva Smith stabbed Mr. Settimo in self-defence.

[162] The Crown has failed to prove beyond a reasonable doubt that Mr. DaSilva Smith did not stab Mr. Settimo for the purpose of protecting himself from the use of threat of force by Mr. Settimo.

Was Mr. DaSilva Smith's use of force was reasonable in the circumstances?

[163] I have previously detailed the extent of the injury inflicted by Mr. DaSilva Smith on Mr. Settimo.

[164] The undisputed evidence is that Mr. Settimo not only pointed his firearm at Mr. DaSilva Smith, but that he also fired a shot in the direction of Mr. DaSilva Smith’s head. While Mr. Settimo testified that he intentionally directed the shot to the side of Mr. DaSilva Smith’s head, Mr. DaSilva Smith would not have known that Mr. Settimo was not going to shoot him. Both Mr. Settimo and Mr. DaSilva Smith testified that the shot blew off Mr. DaSilva Smith’s hat.

[165] Mr. DaSilva Smith could have, like Jordan, attempted to run away. The defence submits that Mr. DaSilva Smith was at a disadvantage because he saw Mr. Settimo point the gun after Jordan. While it is somewhat illogical that Mr. DaSilva Smith engaged in a struggle with someone shooting a gun at him, once Mr. DaSilva Smith made the choice not to run away, he had no choice but to try to disarm Mr. Settimo to defend himself.

[166] Under the circumstances, where he was faced with the very real possibility of being shot in the face or head at close range, I find that Mr. DaSilva Smith’s use of force was reasonable in the circumstances. Mr. DaSilva Smith was faced with the threat of death and he used the force necessary to disarm Mr. Settimo and escape. See R. v. Avril, 2015 ONSC 2158, 120 W.C.B. (2d) 426.

[167] For the foregoing reasons, the Crown has failed to prove beyond a reasonable doubt that self-defence does not apply. Accordingly, Mr. DaSilva Smith is acquitted of the count of aggravated assault.

Robbery

[168] The Crown’s position is that after Mr. DaSilva Smith saw Mr. Settimo pull out the firearm on the school bus, he and Jordan made a plan to take it. The Crown does not rely on Mr. Settimo’s evidence that Mr. DaSilva Smith knew that he had a firearm because Mr. DaSilva Smith went to Mr. Settimo’s house approximately two weeks before the incident and saw a video of Mr. Settimo shooting a firearm.

[169] The Crown’s theory, that Mr. DaSilva Smith and Jordan wanted to rob Mr. Settimo of his firearm, strikes me as plausible. The fact that he went to speak to Jordan, and that they both returned to the parking lot where Mr. Settimo was, even though Jordan had handed the weed to Mr. DaSilva Smith, indicates that they had a plan.

[170] As detailed above, the broken strap and fallen D-ring support a struggle over Mr. Settimo’s bag. However, as the defence submits, the broken strap could be equally consistent with a struggle to disarm Mr. Settimo and get away. As a result, I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. DaSilva Smith is guilty of the offence of robbery.

[171] Moreover, in examination in chief, Mr. Settimo testified that Mr. DaSilva Smith was a “pawn” and did not know that Jordan intended to take his bag. He stated that it was Jordan who made the comment that he understood to be a demand for the bag. However, in cross-examination, Mr. Settimo testified that it was Mr. DaSilva Smith who demanded the bag. Because of Mr. Settimo’s inconsistent testimony, I am unable to find that Mr. DaSilva Smith intended to rob Mr. Settimo of his firearm.

[172] On the W.(D.) analysis, I did not believe Mr. DaSilva Smith’s evidence; nor did it leave me with a reasonable doubt. However, I am not satisfied that the Crown has proved the charges beyond a reasonable doubt and therefore find Mr. DaSilva Smith not guilty of the charges.

Conclusion

[173] For all the foregoing reasons, I find the accused, Jonathan DaSilva Smith not guilty of attempted murder, aggravated assault and robbery. As noted at the outset of these reasons, Mr. DaSilva Smith has pleaded guilty to the offence of failure to comply.

Nishikawa J.

Released: August 12, 2021

COURT FILE NO.: CR-21-30000080

DATE: 20210812

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Jonathan DaSilva Smith

REASONS FOR JUDGMENT

Nishikawa J.

Released: August 12, 2021

[^1]: While the transcript states “pussy belong in shit”, on the recording, Mr. Settimo states “pussy boy, run your shit.”

[^2]: On cross-examination, Mr. Settimo was asked who said “pussy boy, run your bag”. However, Mr. Settimo had not testified to anyone saying “run your bag”.

Overview

Facts

The Parties Positions

Issues

Analysis

The Applicable Principles

Attempted Murder

Aggravated Assault

Robbery

Self-Defence

Assessing the Evidence

Evidence

Jonathan DaSilva Smith

Benny Settimo

PC Nicholas Adams

PC Joshua Goulah

DCs Erika Machachek and Robert Jitta

PC Alexi Prodamos

Nancy Porter

Credibility and Reliability

Mr. DaSilva Smith

Mr. Settimo

Findings

Attempted Murder

Aggravated Assault

Self-Defence

Did Mr. DaSilva Smith have reasonable grounds to believe that force was being used or threatened against him by Mr. Settimo?

Did Mr. DaSilva Smith stab Mr. Settimo for the purpose of protecting himself from the use or threat of force by Mr. Settimo?

Was Mr. DaSilva Smith's use of force was reasonable in the circumstances?

Robbery

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 3